Chase, Circuit Justice (charging jury). Gentlemen of the
jury: When men are found rash enough to commit an offence
such as the traverser is charged with, it becomes the
duty of the government to take care that they should not
pass with impunity. It is my duty to state to you the law on
which this indictment is preferred, and the substance of
the accusation and defence. Thomas Cooper, the traverser,
stands charged with having published a false, scandalous
and malicious libel against the president of the United
States, in his official character as president. There is no
civilized country that I know of, that does not punish such
offences; and it is necessary to the peace and welfare of
this country, that these offences should meet with their
proper punishment, since ours is a government founded
on the opinions and confidence of the people. The representatives
and the president are chosen by the people. It is
a government made by themselves; and their officers are
chosen by themselves; and, therefore, if any improper law
is enacted, the people have it in their power to obtain the
repeal of such law, or even of the constitution itself, if
found defective, since provision is made for its amendment.
Our government, therefore, is really republican; the
people are truly represented, since all power is derived
from them. It is a government of representation and responsibility.
All officers of the government are liable to be
displaced or removed, or their duration in office limited
by elections at fixed periods. There is one department
only, the judiciary, which is not subject to such removal;
their offices being held "during good behaviour," and
therefore they can only be removed for misbehaviour. All
governments which I have ever read or heard of punish
libels against themselves. If a man attempts to destroy the
confidence of the people in their officers, their supreme
magistrate, and their legislature, he effectually saps the
foundation of the government. A republican government
can only be destroyed in two ways: the introduction of luxury,
or the licentiousness of the press. This latter is the
more slow, but most sure and certain, means of bringing
about the destruction of the government. The legislature
of this country, knowing this maxim, has thought proper
to pass a law to check this licentiousness of the press: by a
clause in that law it is enacted. (Judge Chase here read the
second section of the sedition law.) It must, therefore, be
observed, gentlemen of the jury, that the intent must be
plainly manifest. It is an important word in the law; for if
there is no such intent to defame, &c., there is no offence
created by that law. Thomas Cooper, then, stands indicted
for having published a false, scandalous and malicious libel
upon the president of the United States, with intent to defame
the president, to bring him into contempt and disrepute,
and to excite against him the hatred of the good
people of the United States. This is the charge. The traverser
has pleaded not guilty, and that he has not published,
&c., with these views. He has also pleaded in justification
(which the law provides for), that the matters
asserted by him are true, and that he will give the same in
evidence.

It is incumbent on the part of the prosecution to prove
two facts: (1) That the traverser did publish the matters
contained in the indictment. (2) That he did publish with
intent to defame, &c. For the intent is as much a fact as
the other, and must be proved in the same manner as
other facts; and must be proved as stated in the law of
congress--the mere publication is no offence; and in making
up your verdict, though you consider them separately,
you must take the whole tenor and import of the publication,
since the offence is committed by the two coupled
together.

First, then, as to the publication. The fact of writing and
publishing is clearly proved; nay, in fact, it is not denied.
It is proved to have taken place at Sunbury, a considerable
distance from the seat of government. It appears from the
evidence that the traverser went to the house of a justice
of the peace with this paper, whom, of all others, he ought
to have avoided; for he must know that it was the duty of
the justice of the peace to deliver it immediately to those
who administer the government. He did so. It was indecent
to deliver such a paper to a justice of the peace, and
the manner in which it was delivered was yet more outrageous--if
it was done in joke, as the traverser would wish
to imply, it was still very improper--but there was the
same solemnity in his expression, "This is my name, and I
am the author of this handbill," as if the traverser was
going to part with an estate. This conduct showed that he
intended to dare and defy the government, and to provoke
them, and his subsequent conduct satisfies my mind
that such was his disposition. For he justifies the publication
in all its parts, and declares it to be founded in truth.
It is proved most clearly to be his publication. It is your
business to consider the intent as coupled with that, and
view the whole together. You must take that publication,
and compare it with the indictment. If there are doubts as
to the motives of the traverser, he has removed them; for,
though he states in his defence that he does not arraign
the motives of the president, yet he has boldly avowed that
his own motives in this publication were to censure the
conduct of the president, which his conduct, as he
thought, deserved. Now, gentlemen, the motives of the
president, in his official capacity, are not a subject of inquiry
with you. Shall we say to the president, you are not
fit for the government of this country? It is no apology for
a man to say, that he believes the president to be honest,
but that he has done acts which prove him unworthy the
confidence of the people, incapable of executing the duties
of his high station, and unfit for the important office to
which the people have elected him: the motives and intent
of the traverser, not of the president, are the subject to be
inquired into by you.

Now we will consider this libel as published by the defendant,
and observe what were his motives. You will find
the traverser speaking of the president in the following
words: "Even those who doubted his capacity, thought well
of his intentions." This the traverser might suppose would
be considered as a compliment as to the intentions of the
president; but I have no doubt that it was meant to carry
a sting with it which should be felt; for it was in substance
saying of the president, "You may have good intentions,
but I doubt your capacity." He then goes on to say: "Nor
were we yet saddled with the expense of a permanent
navy, nor threatened, under his (the president's) auspices,
with the existence of a standing army. Our credit was not
yet reduced so low as to borrow money at eight per cent.
in time of peace." Now, gentlemen, if these things were
true, can any one doubt what effect they would have on
the public mind? If the people believed those things, what
would be the consequence? What! the president of the
United States saddle us with a permanent navy, encourage
a standing army, and borrow money at a large premium?
And are we told, too, that this is in time of peace? If you
believe this to be true, what opinion can you, gentlemen,
form of the president? One observation must strike you,
viz.: That these charges are made not only against the
president, but against yourselves who elect the house of
representatives, for these acts cannot be done without first
having been approved of by congress. Can a navy be built,
can an army be raised, or money borrowed, without the
consent of congress? The president is further charged for
that "the unnecessary violence of his official expressions
might justly have provoked a war." This is a very serious
charge indeed. What, the president, by unnecessary violence,
plunge this country into a war! and that a just war?
It cannot be--I say, gentlemen, again, if you believe this,
what opinion can you form of the president? Certainly the
worst you can form: you would certainly consider him totally
unfit for the high station which he has so honorably
filled, and with such benefit to his country. The traverser
states that, under the auspices of the president, "our credit
is so low that we are obliged to borrow money at eight per
cent. in time of peace." I cannot suppress my feelings at
this gross attack upon the president. Can this be true? Can
you believe it? Are we now in time of peace? Is there no
war? No hostilities with France? Has she not captured our
vessels and plundered us of our property to the amount
of millions? Has not the intercourse been prohibited with
her? Have we not armed our vessels to defend ourselves,
and have we not captured several of her vessels of war?
Although no formal declaration of war has been made, is
it not notorious that actual hostilities have taken place?
And is this, then, a time of peace? The very expense incurred,
which rendered a loan necessary, was in consequence
of the conduct of France. The traverser, therefore,
has published an untruth, knowing it to be an untruth.

The other part of the publication is much more offensive.
I do not allude to his assertions relating to the embassies
to Prussia, Russia, and the Sublime Porte. They are
matters of little consequence, and, therefore, I shall pass
over them. The part to which I allude is that where the
traverser charges the president with having influenced the
judiciary department. I know of no charge which can be
more injurious to the president than that of an attempt to
influence a court of judicature; the judicature of the country
is of the greatest consequence to the liberties and existence
of a nation. If your constitution was destroyed, so
long as the judiciary department remained free and uncontrolled,
the liberties of the people would not be endangered.
Suffer your courts of judicature to be destroyed;
there is an end to your liberties. The traverser says that
this interference was a stretch of authority that the monarch
of Great Britain would have shrunk from; an interference
without precedent, against law and against mercy.
Is not this an attack, and a most serious attack on the character
of the president? The traverser goes on thus: "This
melancholy case of Jonathan Robbins, a native of America,
forcibly impressed by the British, and delivered, with the
advice of Mr. Adams, to the mock trial of a British court-martial,
had not yet astonished the republican citizens of
this free country,--a case too little known, but of which
the people ought to be fully apprised before the election,
and they shall be." Now, gentlemen, there are circumstances
in this publication which greatly aggravate the offence.
The traverser does not only tell you that the president
interfered to influence a court of justice without
precedent, against law and against mercy; but that he so
interfered in order to deliver up a native American citizen
to be executed by a British court-martial under a mock
trial, against law and against mercy. Another circumstance
is adduced to complete the picture. He tells you that this
Robbins was not only an American, but a native American,
forcibly impressed by the British; and yet that the president
of the United States, without precedent, against law
and against mercy, interfered with a court of justice, and
ordered this native American to be delivered up to a mock
trial by a British court-martial. I can scarcely conceive a
charge can be made against the president of so much consequence,
or of a more heinous nature. But, says Mr.
Cooper, he has done it. I will show you the case in which
he has done it. It is the case of Jonathan Robbins. It appears
then that this is a charge on the president, not only
false and scandalous, but evidently made with intent to injure
his character, and the manner in which it is made is
well calculated to operate on the passions of Americans,
and I fear such has been the effect. If this charge were
true, there is not a man amongst you but would hate the
president. I am sure I should hate him myself if I had
thought he had done this. Upon the purity and independence
of the judges depend the existence of your government
and the preservation of your liberties. They should
be under no influence--they are only accountable to God
and their own consciences--your present judges are in
that situation.

There is a little circumstance which the attorney-general,
in his observations to you, omitted to state, but which
I think it right to recall to your recollection, as it appears
with what design the traverser made this publication. In
this allusion to Jonathan Robbins he expressly tells you this
is "a case too little known, but of which the people ought
to be fully apprised before the election, and they shall be."
Here, then, the evident design of the traverser was, to
arouse the people against the president so as to influence
their minds against him on the next election. I think it
right to explain this to you, because it proves, that the
traverser was actuated by improper motives to make this
charge against the president. It is a very heavy charge, and
made with intent to bring the president into contempt and
disrepute, and excite against him the hatred of the people
of the United States. The traverser has read in evidence a
report made by the president to the house of representatives,
and a letter written by the secretary of state, to show
that the president had advised and directed this Robbins
to be given up; but subsequent facts could not excuse the
traverser for what he had written before. Now, gentlemen,
with regard to this delivery of Jonathan Robbins, I am
clearly of opinion that the president could not refuse to
deliver him up. This same Jonathan Robbins, whose real
name appears to have been Nash, was charged with murder
committed on board the Hermione, British ship of
war. This Nash being discovered in America, the British
minister made a requisition to the president that he should
be delivered up. Then we must inquire whether the president
was obliged to give him up? By the twenty-seventh
article of the treaty with Great Britain, it is stipulated,
"that either of the contracting parties will deliver up to
justice all persons who, being charged with murder or forgery
committed within the jurisdiction of either, shall seek
an asylum within any of the countries of the other, provided
this shall be done only on such evidence of criminality
as, according to the laws of the place where the fugitive
or person so charged shall be found, would justify
his apprehension and commitment for trial, if the offence
had been there committed." If the president, therefore, by
this treaty, was bound to give this Nash up to justice, he
was so bound by law; for the treaty is the law of the land:
if so, the charge of interference to influence the decisions
of a court of justice, is without foundation. The reason
why this article was inserted in the treaty, is evident. Murder
is a crime against the laws of God and man, and ought
never to be committed with impunity. Forgery is an offence
affecting all commercial countries, and should never
go unpunished; and therefore every government, especially
a commercial one, acts wisely in delivering fugitives
guilty of such crimes to justice. Nash was charged with
having committed murder on board a British ship of war.
Now a dispute has arisen whether murder committed on
board such a ship of war, was committed within the jurisdiction
of Great Britain. I have no doubt as to the point.
All vessels, whether public or private, are part of the territory
and within the jurisdiction of the nation to which
they belong. This is according to the law of nations. All
nations have this jurisdiction, and the reason is obvious,
for every country carrying on commerce, is answerable to
other nations for the conduct of their subjects on the
ocean. Were it not so, crimes committed on board vessels
of war would go unpunished; for no other country can
claim jurisdiction. This person, then, was charged with
murder committed on board a British ship of war. I say it
was committed within the jurisdiction of Great Britain. By
the constitution, (since the treaty is the law of the land,)
America was bound to give him up: but who is the person
to deliver up a fugitive according to that article in the
treaty? The president was the only person to take the
proper steps, and to take cognizance of the business. He
represents the United States in their concerns with foreign
powers. This affair could not be tried before a court of
law. No court of justice here has jurisdiction over the
crime of murder committed on board a British ship of
war. Now, as the requisition was made to the president on
the part of the British government to deliver this man up,
it became necessary to know whether there was sufficient
evidence of his criminality pursuant to the treaty. The
judge of the court of Carolina was therefore called upon
to inquire into the evidence of his criminality. He was the
instrument made use of by the president to ascertain that
fact. His delivery was the necessary act of the president,
which he was by the treaty and the law of the land, bound
to perform: and had he not done so, we should have
heard louder complaints from that party who are incessantly
opposing and calumniating the government, that
the president had grossly neglected his duty by not carrying
a solemn treaty into effect. Was this, then, an interference
on the part of the president with the judiciary without
precedent, against law and against mercy; for doing
an act which he was bound by the law of the land to carry
into effect, and over which a court of justice had no jurisdiction?
Surely not; neither has it merited to be treated in
the manner in which the traverser has done in his publication.
A defence of greater novelty I never heard before.

Take this publication in all its parts, and it is the boldest
attempt I have known to poison the minds of the people.
He asserts that Mr. Adams has countenanced a navy, that
he has brought forward measures for raising a standing
army in the country. The traverser is certainly a scholar,
and has shown himself a man of learning, and has read
much on the subject of armies. But to assert, as he has
done, that we have a standing army in this country, betrays
the most egregious ignorance, or the most wilful intentions
to deceive the public. We have two descriptions of armies
in this country--we have an army which is generally called
the Western army, enlisted for five years only--can this be
a standing army? Who raises them? Congress. Who pays
them? The people. We have also another army, called the
provisional army, which is enlisted during the existence of
the war with France--neither of these can, with any propriety,
be called a standing army. In fact, we cannot have
a standing army in this country, the constitution having
expressly declared that no appropriation shall be made for
the support of an army longer than two years. Therefore,
as congress may appropriate money for the support of the
army annually, and are obliged to do it only for two years,
there can be no standing army in this country until the
constitution is first destroyed. There is no subject on which
the people of America feel more alarm, than the establishment
of a standing army. Once persuade them that the
government is attempting to promote such a measure, and
you destroy their confidence in the government. Therefore,
to say, that under the auspices of the president, we
were saddled with a standing army, was directly calculated
to bring him into contempt with the people, and excite
their hatred against him.

It is too much to press this point on the traverser. But
he deserves it. This publication is evidently intended to
mislead the ignorant, and inflame their minds against the
president, and to influence their votes on the next election.
The traverser says, he has proved that the president has
advocated a standing army--how has he proved it? There
is no standing army; I have before stated, the army is only
raised for five years, and during the existing differences--he
tells you, Mr. Adams is a friend to the establishment of
a navy; I wonder who is not a friend to a navy which is to
protect the commerce and power of this country. The
traverser has, to prove these points, read to you many extracts
from the addresses and answers to the president. He
has selected a number of passages, which, he asserts, prove
the approbation of the president to the creation of a navy,
and forming a standing army. But we are to recollect gentlemen,
that when in consequence of the unjust proceedings
of France, the great mass of the people thought
proper to address the president, expressing in those addresses,
sentiments of attachment and confidence in the
president, and their determination to resist the oppression
of the French government, the president replied to them,
in answers which generally were the echo of their sentiments,
and in fact, his expressions were as general as the
nature of the addresses would permit--therefore, the traverser
ought to have blamed the addressers, and not the
president. The Marine Society of Boston, as old seamen,
address the president in favour of a navy. The president
in reply, thinks a navy is the proper defence of the
country.

I believe, gentlemen, in the first part of my charge, I
made remarks on the assertions of the traverser, that the
president had borrowed money at eight per cent. in time
of peace. Therefore, it will not be necessary to enlarge on
that point. You will please to notice, gentlemen, that the
traverser in his defence must prove every charge he has
made to be true; he must prove it to the marrow. If he
asserts three things, and proves but one, he fails; if he
proves but two, he fails in his defence, for he must prove
the whole of his assertions to be true. If he were to prove,
that the president had done everything charged against
him in the first paragraph of the publication--though he
should prove to your satisfaction, that the president had
interfered to influence the decisions of a court of justice,
that he had delivered up Jonathan Robbins without precedent,
against law and against mercy, this would not be
sufficient, unless he proved at the same time, that Jonathan
Robbins was a native American, and had been forcibly
impressed, and compelled to serve on board a British
ship of war. If he fails, therefore, gentlemen, in this proof,
you must then consider whether his intention in making
these charges against the president were malicious or not.
It is not necessary for me to go more minutely into an
investigation of the defence. You must judge for yourselves--you
must find the publication, and judge of the
intent with which that publication was made, whether it
was malice or not? If you believe that he has published it
without malice, or an intent to defame the president of the
United States, you must acquit him. If he has proved the
truth of the facts asserted by him, you must find him not
guilty.

After the jury had returned with a verdict of guilty:

Chase, Circuit Justice. Mr. Cooper, as the jury have
found you guilty, we wish to hear any circumstances you
have to offer in point of the mitigation of the fine the
court may think proper to impose on you, and also in extenuation
of your punishment. We should therefore wish
to know your situation in life, in regard to your circumstances.
It will be proper for you to consider of this. As
you are under recognizance, you will attend the court
some time the latter end of the week. (The court appointed
Wednesday.)

Proceedings on Wednesday, April 30, 1800.

Chase, Circuit Justice. Mr. Cooper, have you anything
to offer to the court previous to passing sentence?

Mr. Cooper. The court have desired me to offer anything
relating to my circumstances in mitigation of the
fine, or any observation that occurs to me in extenuation
of the offence. I have thought it my duty (not for the purpose
of deprecating any punishment which the court may
deem it proper to inflict, but) to prevent any accidental or
apparent harshness of punishment on part of the court,
for want of that information which it is in my power to
give. For this reason, therefore, and that the court may not
be misled, I think it right to say, that my property in this
country is moderate. That some resources I had in England,
commercial failures there have lately cut off: that I
depend principally on my practice: that practice, imprisonment
will annihilate. Be it so. I have been accustomed
to make sacrifices to opinion, and I can make this. As to
circumstances in extenuation, not being conscious that I
have set down aught in malice, I have nothing to extenuate.

Chase, Circuit Justice. I have heard what you have to
say. I am sorry you did not think proper to make an affidavit
in regard to your circumstances; you are a perfect
stranger to the court, to me at least. I do not know you
personally--I know nothing of you, more than having
lately heard your name mentioned in some publication.
Every person knows the political disputes which have existed
amongst us. It is notorious that there are two parties
in the country; you have stated this yourself. You have
taken one side--we do not pretend to say, that you have
not a right to express your sentiments, only taking care not
to injure the characters of those to whom you are opposed.
Your circumstances ought to have been disclosed, on affidavit,
that the court might have judged as to the amount
of the offence; nor did we want to hurt you, by this open
disclosure.

Mr. Cooper. I have nothing to disclose that I am
ashamed of.

Chase, Circuit Justice. If we were to indulge our own
ideas, there is room to suspect that in cases of this kind,
where one party is against the government, gentlemen
who write for that party would be indemnified against any
pecuniary loss; and that the party would pay any fine
which might be imposed on the person convicted. You
must know, I suppose, before you made any publication
of this kind, whether you were to be supported by a party
or not, and whether you would not be indemnified against
any pecuniary loss. If the fine were only to fall on yourself,
I would consider your circumstances; but, if I could believe
you were supported by a party inimical to the government,
and that they were to pay the fine, not you, I
would go to the utmost extent of the power of the court.
I understand you have a family, but you have not thought
proper to state that to the court. From what I can gather
from you, it appears that you depend on your profession
for support; we do not wish to impose so rigorous a fine
as to be beyond a person's abilities to support, but the government
must be secured against these malicious attacks.
You say that you are not conscious of having acted from
malicious motives. It may be so; saying so, we must believe
you; but, the jury have found otherwise. You are a gentleman
of the profession, of such capacity and knowledge, as
to have it more in your power to mislead the ignorant. I
do not want to oppress, but I will restrain, as far as I can,
all such licentious attacks on the government of the country.

Mr. Cooper. I have been asked by the court whether, in
case of a fine being imposed upon me, I shall be supported
by a party. Sir, I solemnly aver, that throughout my life,
here and elsewhere, among all the political questions in
which I have been concerned, I have never so far demeaned
myself as to be a party writer. I never was in the
pay or under the support of any party; there is no party
in this, or any other country, that can offer me a temptation
to prostitute my pen. If there are any persons here
who are acquainted with what I have published, they must
feel and be satisfied that I have had higher and better motives,
than a party could suggest. I have written, to the best
of my ability, what I seriously thought would conduce to
the general good of mankind. The exertions of my talents,
such as they are, have been unbought, and so they shall
continue; they have indeed been paid for, but they have
been paid for by myself, and by myself only, and sometimes
dearly. The public is my debtor, and what I have
paid or suffered for them, if my duty should again call
upon me to write or to act, I shall again most readily submit
to. I do not pretend to have no party opinions, to have
no predilection for particular descriptions of men or of
measures; but I do not act upon minor considerations; I
belong here, as in my former country, to the great party
of mankind. With regard to any offers which may have
been made to me, to enable me to discharge the fine which
may be imposed, I will state candidly to the court what has
passed, for I wish not to conceal the truth; I have had no
previous communication or promise whatever. I have since
had no specific promises of money or anything else. I
wrote from my own suggestions. But, many of my friends
have, in the expectation of a verdict against me, come forward
with general offers of pecuniary assistance; these offers
I have, hitherto, neither accepted nor rejected. If the
court should impose a fine beyond my ability to pay, I shall
accept them without hesitation; but if the fine be within
my circumstances to discharge, I shall pay it myself. But
the insinuations of the court are ill founded, and if you,
sir, from misapprehension or misinformation have been
tempted to make them, your mistake should be corrected.

Peters, District Judge. I think we have nothing to do
with parties; we are only to consider the subject before us.
I wish you had thought proper to make an affidavit of
your property. I have nothing to do, sitting here, to inquire
whether a party in whose favour you may be, or you,
are to pay the fine. I shall only consider your circumstances,
and impose a fine which I think adequate; we
ought to avoid any oppression. It appears that you depend
chiefly upon your profession for support. Imprisonment
for any time would tend to increase the fine, as your family
would be deprived of your professional abilities to
maintain them.

Chase, Circuit Justice. We will take time to consider
this. Mr. Cooper, you may attend here again.

Thursday, Mr. Cooper attended, and the court sentenced
him to pay a fine of four hundred dollars; to be
imprisoned for six months, and, at the end of that period,
to find surety for his good behaviour, himself in a thousand,
and two sureties in five hundred dollars each.

The Founders' Constitution
Volume 5, Amendment I (Speech and Press), Document 25http://press-pubs.uchicago.edu/founders/documents/amendI_speechs25.htmlThe University of Chicago Press